Joseph Klein, Religious liberty at stake. The U.S. Supreme Court has solidified its support for religious freedom, delivering a blow last Friday night against arbitrary attempts by California’s Governor Gavin Newsom to prevent people of faith from gathering indoors to worship.
It follows on the heels of another Supreme Court decision last November, which disapproved of New York Governor Andrew Cuomo’s discriminatory edicts limiting group worship by the residents of New York State during the COVID-19 emergency.
By a 6-3 vote, the Supreme Court sided with the San Diego area South Bay Pentecostal Church, which challenged Newsom’s ban of indoor worship as part of his coronavirus lockdown orders. The Court issued a partial emergency injunction blocking the enforcement of the state of California’s prohibition on indoor worship services, pending disposition of a petition for the Court to undertake a full review of the constitutional issues in the case. For now, the Court was willing to allow a 25% capacity limitation on indoor worship services and the continuation of a prohibition of singing or chanting indoors because of the enhanced possibility that such activities can spread the virus.
The Supreme Court ruling left open the right of the plaintiff to present evidence that the state of California is “not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.” South Bay Pentecostal Church operates in a county of California that has been designated Tier 1, which indicates that the virus is widespread in the county. At present, Tier 1 restrictions cover nearly all of the state. While churches and other places of worship in Tier 1 counties are not allowed to be open for indoor worship, secular businesses such as music, TV, and film production can conduct business indoors. This disparate treatment raises serious questions regarding discrimination against religious institutions and their congregants who wish to exercise their constitutionally protected right to freely assemble and pray inside their places of worship. In her concurring opinion, Justice Amy Coney Barrett noted that “if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.”
Arthur Hodges, South Bay Pentecostal Church’s bishop, courageously stood up against the state’s trampling on the rights of his church and its parishioners. With a Sword of Damocles wielded by aggressive law enforcement officers hanging over his church and other places of worship, Bishop Hodges decided that a legal challenge to California’s state shutdown order was necessary to vindicate the primary importance of religious freedom. The Freedom of Conscience Defense Fund, working with the Thomas More Society, stepped in and filed a complaint on South Bay’s behalf. These non-profit organizations were able to do so with the generous financial support of individuals, including entrepreneur and philanthropist Dr. Robert Shillman.
“The only way that we can preserve our rights is standing up to those evil persons who want to take them away,” Dr. Shillman declared. “Americans have inalienable rights and one of those rights is to peacefully assemble to pray, which cannot be taken away while others are free to engage in secular activities. There is absolutely a clear line of discrimination against people of faith.”
The lead attorney on behalf of South Bay, Charles LiMandri, said after the Supreme Court issued its ruling on Friday:
“We are heartened by this order from the United States Supreme Court allowing South Bay to gather for worship this weekend while our case against Governor Newsom continues. Throughout the COVID lockdown, the governor has demonstrated a flagrant disregard for California’s citizens and their deeply and sincerely held religious beliefs. His so-called ‘reopening plan’ is structured on the same discriminatory principles as those of New York’s Governor Cuomo, which were soundly denounced by the Supreme Court in their Thanksgiving Eve decision in Diocese of Brooklyn v. Cuomo…It is time for the United States Constitution to be honored in the State of California and we thank the high court for upholding religious liberty and acting on South Bay’s behalf.”
For his part, Bishop Hodges said, “We are thrilled and excited to go back to church without legal threat of fines or arrest. This opens up churches in the entire state of California.” Despite being a practicing Jew, Dr. Shillman participated in services on Sunday at the South Bay Pentecostal Church to celebrate this victory for religious freedom for people of all faiths.
The Supreme Court decision was unsigned. However, Chief Justice John Roberts wrote a concurring opinion in the case. He joined the majority, reversing the stance he took when the case first came to the Court last year. At that time, the Chief Justice expressed no reservation in deferring to those he considered to be politically accountable officials with the “background, competence, and expertise to assess public health.” This time around, Chief Justice Roberts wrote in his concurring opinion that “Deference, though broad, has its limits.” Roberts drew the line at the California government’s “present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero,” which “appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.” However, the Chief Justice was willing to defer to the state public health expert judgment that singing indoors poses a heightened risk of transmitting the coronavirus.
Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch viewed California’s restrictions on places of worship more skeptically. Justice Gorsuch wrote, “Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses.” While acknowledging that justices are not scientists, Justice Gorsuch cautioned that “neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty.”
Justice Gorsuch observed that California had “singled out religion for worse treatment than many secular activities.” The state did not extend the same options for conducting religious services indoors with health safety precautions as it does in allowing secular businesses to operate with some constraints indoors. “In my view, the State must do more to tailor the requirements of public health to the rights of its people,” he wrote. Justice Gorsuch concluded his concurring opinion by noting that “if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.”
The three liberal justices on the Supreme Court, Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor, did not think that anything had gone awry. They dissented, bowing down to the unquestioned authority of the state. In her dissenting opinion, Justice Kagan complained that “the Court will not let California fight COVID as it thinks appropriate.” That’s as it should be, if what California “thinks appropriate” includes trampling on the First Amendment rights of its citizens based on sketchy evidence. Justice Kagan tried to pose the issue as a choice between the state’s reliance on “the best science” and “making a special exception for worship services.” That’s a false choice. What the government must do is prove with solid evidence that its prohibitions on the exercise of a constitutionally protected right are necessary to achieve a compelling state interest and that there are no less restrictive means to satisfy that interest.
Heaven forbid that, in Justice Kagan’s words, “the Court second-guesses the judgments of expert officials.” The Court must do so where fundamental liberties are at stake.
America’s earliest settlers risked their lives to flee religious persecution they had endured in Europe. Although religious intolerance did rear its ugly head on these shores during colonial times and afterwards, the flame of religious liberty was not extinguished. It burns brightly in the words of the First Amendment’s guarantee of the free exercise of religion. Every generation is called upon to guard this flame. It is a beacon of hope for so many people of faith in other parts of the world who are still facing persecution for their beliefs. We must not take it for granted. Today, religious liberty in this country hangs by a slender thread, held up for now by a conservative majority on the Supreme Court.
The progressive left authoritarians inside government and out believe that they have a monopoly on the truth. Their “religion” consists of an amalgam of critical race theory, identity politics, social justice, censorship of politically incorrect viewpoints, and the power of the all-knowing bureaucratic state. These authoritarians want to pack the Supreme Court to remove the last remaining major obstacle to their plans for a fundamentally transformed America. It will take valiant Americans who still believe in this country and its founding principles to stop them.